B-62866, JANUARY 17, 1947, 26 COMP. GEN. 504

B-62866, JANUARY 17, 1947, 26 COMP. GEN. 504

LEAVES OF ABSENCE - ANNUAL - ACCRUAL DURING PERIODS OF ANNUAL LEAVE PRIOR TO FURLOUGH IN CONTEMPLATION OF SEPARATION BY REDUCTION IN FORCE AN EMPLOYEE WHO REQUESTED AND WAS GRANTED HIS ACCRUED ANNUAL LEAVE IMMEDIATELY PRIOR TO BEING PLACED ON FURLOUGH IN CONTEMPLATION OF SEPARATION BY REDUCTION IN FORCE, AS AUTHORIZED BY SECTION 2.3 OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JULY 1, 1946, IS ENTITLED TO RECEIVE COMPENSATION FOR LEAVE WHICH ACCRUED DURING SUCH PERIOD OF ACCRUED LEAVE, IN VIEW OF THE PROVISIONS OF SECTION 4.2 OF SAID REGULATIONS PROVIDING FOR ACCRUAL OF LEAVE WHILE IN A LEAVE-WITH-PAY STATUS EVEN THOUGH THERE IS NO RETURN TO DUTY, IF THE "FAILURE TO RETURN TO DUTY IS DUE TO * * * REDUCTION IN FORCE.' COMPARE 23 COMP. GEN. 638; 24 ID. 659; ID. 735.

COMPTROLLER GENERAL WARREN TO C. STEPHEN DUVALL, JR., DEPARTMENT OF LABOR, JANUARY 17, 1947:

I HAVE YOUR LETTER OF JANUARY 8, 1947, AS FOLLOWS:

THERE HAS BEEN SUBMITTED TO ME FOR CERTIFICATION THE ATTACHED PAYROLL VOUCHER COVERING PAYMENT OF 12 HOURS OF LEAVE ACCRUING WHILE ON LEAVE FROM DECEMBER 10, 1946, FOR MR. KARL R. WEBER.

YOUR DECISION AS TO THIS VOUCHER BEING PROPER FOR CERTIFICATION IS RESPECTFULLY REQUESTED IN VIEW OF THE FACTS AS HEREIN SET FORTH:

ON NOVEMBER 18, 1946 MR. WEBER RECEIVED A REDUCTION-IN-FORCE NOTICE WHICH PROVIDED FOR 30 DAYS OF DUTY STATUS. UPON THE EXPIRATION OF SUCH DUTY STATUS HE WAS GIVEN A CHOICE OF: FIRST, BEING PLACED ON ANNUAL LEAVE; SECOND, BEING PLACED ON FURLOUGH; THIRD, BEING SEPARATED AND PAID LUMP SUM FOR ACCRUED LEAVE. MR. WEBER REQUESTED THE FIRST AND FURTHER REQUESTED THAT HIS LEAVE START DECEMBER 10, 1946. MR. WEBER HAS BEEN PAID THROUGH DECEMBER 27, 1946, 2:30 P.M., INCLUDING 101 HOURS OF ANNUAL LEAVE ACCRUED AS OF DECEMBER 9, 1946, THE LAST DAY OF ACTIVE DUTY. IT IS POINTED OUT THAT MR. WEBER WILL NOT BE SEPARATED UNDER TERMS OF THIS NOTICE UNTIL 90 DAYS AFTER THE EXPIRATION OF ACCRUED LEAVE AND IS SUBJECT TO RECALL TO DUTY UNTIL THAT TIME.

THE VOUCHER IS BASED, AS INDICATED ON THE CHANGE SLIP ATTACHED THERETO UPON CIVIL SERVICE REGULATIONS, SECTION 4.2 (A), PART IV, CH.Z1- - PAGE 453, WHICH READS AS FOLLOWS:

SEC. 4.2 (A) LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE WITH-PAY STATUS, PROVIDED HE RETURNS TO DUTY, OR PROVIDED THAT FAILURE TO RETURN TO DUTY IS DUE TO DEATH, DISABILITY (EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE MEDICAL CERTIFICATE), RETIREMENT FOR DISABILITY, OR REDUCTION IN FORCE.'

IN VIEW OF YOUR DECISIONS, B-61224 DATED NOVEMBER 18, 1946 AND B 61591 DATED NOVEMBER 20, 1946, IT WOULD SEEM THAT THIS PAYMENT WOULD BE PROPER. HOWEVER, THERE IS SOME DOUBT AS TO WHETHER THE PRECISE QUESTION INVOLVED HAS BEEN ANSWERED.

THE QUESTION UPON WHICH YOUR DECISION IS REQUESTED IS,"CAN MR. WEBER BE PAID FOR LEAVE ACCRUING WHILE ON LEAVE AFTER RECEIVING NOTICE OF REDUCTION -IN-FORCE?

AS THIS QUESTION WILL PROBABLY ARISE IN OUR FIELD OFFICES AS WELL AS HERE IN THE NATIONAL OFFICE, AN EARLY REPLY WOULD BE GREATLY APPRECIATED.

THE FIRST DECISION REFERRED TO IN YOUR LETTER, B-61224, DATED NOVEMBER 18, 1946, 26 COMP. GEN. 331, HELD IN EFFECT THAT THIS OFFICE WOULD NOT OBJECT TO THE APPLICATION OF SECTION 2.3 OF THE CURRENT LEAVE REGULATIONS PERMITTING THE GRANTING OF ANNUAL LEAVE IMMEDIATELY PRECEDING A FURLOUGH PERIOD IN CONTEMPLATION OF A REDUCTION IN FORCE, WHILE THE OTHER DECISION B-61591, DATED NOVEMBER 20, 1946, 26 COMP. GEN. 347, HELD THAT THERE WOULD BE NO OBJECTION BY THIS OFFICE TO A PROPOSED REGULATION OF THE CIVIL SERVICE COMMISSION REQUIRING A ONE YEAR ADVANCE NOTICE OF REDUCTION IN FORCE, AND THE CARRYING OF AN EMPLOYEE IN A FURLOUGH STATUS FOR ANY SUCH PERIOD NOT COVERED BY ANNUAL LEAVE.

SECTION 2.3 OF THE CURRENT LEAVE REGULATIONS, EFFECTIVE JULY 1, 1946, PROVIDES IN PERTINENT PART AS FOLLOWS:

ANNUAL LEAVE SHALL BE GRANTED TO AN EMPLOYEE AT SUCH TIME AS THE HEADS OF THE DEPARTMENTS AND AGENCIES MAY PRESCRIBE: PROVIDED, THAT AN EMPLOYEE WHO IS TO BE PLACED ON FURLOUGH IN CONTEMPLATION OF SEPARATION BY REDUCTION OF FORCE SHALL BE GRANTED IMMEDIATELY PRIOR TO FURLOUGH, UPON HIS REQUEST, ANY ANNUAL LEAVE TO WHICH HE IS ENTITLED. * * *

THE LEAVE REGULATIONS IN EFFECT PRIOR TO JULY 1, 1946 (REVISED JANUARY 1, 1944, AND JANUARY 1, 1945), MADE NO PROVISION FOR ACCRUAL OF LEAVE ON LEAVE UNLESS THERE WAS A RETURN TO DUTY, AND, IN THAT CONNECTION, IT WAS HELD BY THIS OFFICE THAT AN EMPLOYEE WAS NOT ENTITLED TO LEAVE ON LEAVE EVEN THOUGH IT WAS NOT KNOWN AT THE TIME HE WENT ON LEAVE THAT HE DID NOT INTEND RETURNING TO DUTY. 23 COMP. GEN. 638; 24 ID. 659, 735.

SECTION 4.2 OF THE CURRENT REGULATIONS, QUOTED IN YOUR LETTER, NOW PERMITS AN ACCRUAL OF LEAVE ON LEAVE IN MUCH THE SAME MANNER AS SECTION 4.6 EXCEPTS EMPLOYEES FROM MAKING REFUND FOR ADVANCED LEAVE WHEN SEPARATED FROM THE SERVICE BECAUSE OF DEATH, RETIREMENT, DISABILITY, OR REDUCTION IN FORCE. IT HAS BEEN INDICATED IN DECISIONS OF THIS OFFICE THAT THE EXCEPTION SPECIFIED IN SECTION 4.6 OF THE LEAVE REGULATIONS--- WHICH REMAIN UNCHANGED IN THE NEW REGULATIONS--- COULD NOT BE INVOKED TO DISPENSE WITH THE GENERAL REQUIREMENT OF A REFUND FOR ADVANCED LEAVE WHEN IT WAS KNOWN IN ADVANCE THERE WOULD BE NO RETURN TO DUTY. 25 COMP. GEN. 874; B-59600, SEPTEMBER 11, 1946. HOWEVER, THE SAME INTERPRETATION WOULD NOT APPEAR APPLICABLE TO SECTION 4.2 OF SAID REGULATIONS.

WHILE THE WORD "FAILURE" AS USED IN SAID SECTION 4.2 WOULD SEEM TO CONNOTE A "FAILURE" SOLELY BECAUSE OF SOME ACT OF THE EMPLOYEE AFTER ENTERING ON A LEAVE STATUS, IT IS OBVIOUS THAT AN EMPLOYEE WOULD, NORMALLY, HAVE NO CONTROL OVER ANY OF THE STATED REASONS FOR NOT RETURNING TO DUTY; ALSO, IT CANNOT BE SAID THAT AN ACCRUAL OF LEAVE ON LEAVE IN RESPECT OF A REDUCTION IN FORCE IS LIMITED TO A REDUCTION OCCURRING AFTER THE EMPLOYEE ENTERS ON LEAVE IN THE LIGHT OF SECTION 2.3 OF THE REGULATIONS PERMITTING ANNUAL LEAVE TO BE GRANTED PRIOR TO AN EMPLOYEE BEING PLACED ON FURLOUGH.

ACCORDINGLY, UNDER THE CIRCUMSTANCES HERE INVOLVED, IT APPEARS REASONABLE TO CONCLUDE THAT ACCRUAL OF LEAVE ON LEAVE IS AUTHORIZED BY SECTION 4.2 OF THE CURRENT LEAVE REGULATIONS, EFFECTIVE JULY 1, 1946, FOR WHICH THE EMPLOYEE IS ENTITLED TO RECEIVE COMPENSATION.